¶1The Circuit Judge charged the jury that the effect of the record of the prior judgment was a question of law, and that in law it was a complete bar to a recovery in this suit. Verdict for Manice, and motion for a new trial on the bill of exceptions denied by the Supreme Court.
¶2The Court of Errors, however, reversed their decision, and held that the record was not a conclusive bar when offered in evidence under the general issue, though admissible under it.
¶3Chancellor Walworth, who delivered an opinion in favor of reversal, says; p. 125,
¶4“ The general rule however; unquestionably is that where the party in whose favor the former verdict and judgment were rendered, wishes to rely on them as a conclusive bar, or an estoppel, he must plead them in bar, if he has an opportunity to do so. And if he neglects to plead, and puts the same matter again in issue to be tried, the jury may decide such issue according to the right and justice of the case as it appears to them from the evidence, notwithstanding the verdict and judgment in the former suit. The judge therefore who tried this cause was wrong, in holding that the record of the verdict and judgment formed an absolute bar where the defendant might have pleaded it as an estoppel, if the former suit was for the same matter.
¶5" For these reasons,” he says, “ the law as well as the justice of the case is with the plaintiff in error, and the judgment of the court below should be reversed.”
¶6Putnam, senator, delivered an opinion in favor of affirrn.ance, reviewing the cases on the subject.
¶7Judgment of Supreme Court reversed, 14 to o.